Jessica Griswold

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Under existing State Law,[1]Vermont agritourism operators are liable to visitors who are injured on their property.[2] This framework seems to prioritize Vermont’s tourists and consumers, but does it?

Vermont is best known for its rolling green valleys, maple sugar farms, and dairy.[3] It is the second least populated State in the U.S.,[4] but a place worth visiting for those who enjoy outdoor activities, beautiful foliage and good food.[5] Specifically, “great food traditions like cheese, chocolate, and ice cream” have travelers adding Vermont to their bucket lists.[6] Moreover, as U.S. consumers increasingly demand local, sustainably produced food, the Green Mountain State has built a reputation as a “center for agritourism.”[7]

Notwithstanding the many benefits of agritourism,[8] liability risks drive a wedge between Vermont farmers and agritourism business opportunities.[9] Given the nature of farming and agriculture, farmers who open private operations up to the public expose their visitors to risks of injury.[10] consequently, risk of injury exposes agritourism operators to negligence liability risks.[11] At present, Vermont’s Agritourism Statute and Limitation of Landowner Liability Statute both fail to protect farmers and agritourism operators.[12] As food producers—and the foundation of the State’s economy—farmers require statutory support.[13] Therefore, Vermont agritourism laws should include immunity from liability for injury arising from inherent risks of agritourism activities.

Part I of this Note provides background information to suggest agritourism’s importance in Vermont. First, Section I.A. defines agritourism. Both the technical and figurative meanings of the term provide a baseline understanding of the industry and its purpose. Next, Section I.B. uses statistical evidence to highlight the significance of Vermont dairy. Section I.B. also describes the history of farming, agriculture and tourism in the State that has given it unparalleled social and cultural value. The historical context demonstrates the unique ways in which agritourism benefits tourists, farmers, business owners, and the community. Lastly, Section I.C. explains the assumption of the risk doctrine and the inherent risks of visiting an agritourism operation.

Moving forward, Part II proposes that Vermont agritourism laws should include immunity from liability for injury arising from inherent risks of agritourism activities. To support this legal theory, this section addresses the significant legal implications and risks of owning an agritourism business. Here, Section II.A. acknowledges inherent risks states commonly associate with agritourism activities and the impact of liability. Further, Section II.B. looks to existing state agritourism immunity statutes and recommends practical changes to Vermont’s current approach. Section II.C. discusses Vermont’s failed attempts to adopt an agritourism immunity statute in the past. In doing so, Section II.C. addresses the lack of relevant case law in Vermont and explains why evidence of past or existing litigation against farmers is not necessary to support this Note’s legal theory. Additionally, this section acknowledges newly introduced agritourism bills in Vermont and further suggests alternative approaches to existing legislation. Before closing, Section II.C. lists the numerous opportunities for agritourism in Vermont to reiterate the industry’s potential.

To conclude, Part III of this Note briefly restates the legal and policy reasons for agritourism immunity in Vermont. Accordingly, the Note concludes with a reassertion that Vermont’s agritourism laws should include immunity from liability for injury arising from inherent risks of agritourism activities.

 

[1] Vt. Stat. Ann. tit. 24, § 4412(11) (2017) (providing Vermont’s existing Agritourism Statute, absent immunity or limited liability for risks inherent to agritourism); see also, Vt. Stat. Ann. tit. 12 §§ 5791–5793 (2017) (exempting farms and agritourism operations from the limited liability statute, which was enacted to encourage landowners to grant access to the public for recreational purposes). Under the statute, owners owe “no greater duty of care to a person who… enters or goes upon the owner’s land for a recreational use than the owner would have to a trespasser.” Id.

[2] See State’s Agritourism Statutes: Vermont, Nat’l Agric. L. Ctr, https://nationalaglawcenter.org/wp-content/uploads/assets/agritourism/vermont.pdf (last visited Feb. 6, 2020) (recognizing Vermont as a state without agritourism immunity or a limited liability statute).

[3] See Vermont: The Green Mountain State, InterExchange, https://www.interexchange.org/american-culture/vermont/ (last visited Feb. 10, 2020) (describing the culture of Vermont and the most popular tourist attractions in the State).

[4] Ranking of States by Population, Beef2Live (Jan. 27, 2020), https://beef2live.com/story-population-state-0-114254.

[5] Welcome to Vermont, Visit New England, https://www.visit-vermont.com/state/ (last visited Feb. 10, 2020).

[6] Vermont Agritourism & Ecotourism Means Fun Outdoors on the Farm Visit New England, https://www.visit-vermont.com/state/agritourism-ecotourism/ (last visited Feb. 10, 2020).

[7]Vermont Dairy & Tourism, Vt Agency Agric. Food & Markets : Vt Dairy,  https://vermontdairy.com/economic-impact/vermont-dairy-tourism/ (last visited Feb. 5, 2020); see also, Capri S. Cafaro, Vermont’s Agritourism Industry is Bustling with Baking, Cheese-making classes and More, Fox News: Food-Drink (Aug. 4, 2019), https://www.foxnews.com/food-drink/vermont-agritourism (describing Vermont as an “agritourism paradise”).

[8]Agritourism – An Overview, Nat’l Agric. L. Ctr, https://nationalaglawcenter.org/overview/agritourism/ (last visited Jan. 29, 2020).

[9] See Nancy Remsen, Farmers Want Argitourism Operations to be Immune From Lawsuits, Seven Days (Feb. 10, 2018, 5:43 PM), https://www.sevendaysvt.com/OffMessage/archives/2016/02/10/farmers-want-agritourism-operations-to-be-immune-from-lawsuits (emphasizing a fifth-generation farmer’s concerns about kids “climbing on things” and getting hurt at his farm in Vermont, where he offers a number of popular public attractions for kids). 

[10] Id.

[11] Id.

[12] Vt. Stat. Ann. tit. 24, § 4412(11) (2017) (providing Vermont’s “Accessory On-Farm Business” Statute, absent immunity or limited liability for risks inherent to agritourism); see also, Vt. Stat. Ann. tit. 12 §§ 5791–5793 (2017) (excluding farms and agritourism operations from limited liability protection under the statute).

[13]See A little Vermont Dairy History: Looking Back, Vt Agency Agric. Food & Markets: Vt Dairy, https://vermontdairy.com/vt-dairy-today/looking-back/ (last visited Apr. 24, 2020) (explaining the rise of the dairy industry in Vermont); see also Vermont Dairy Today, Vt Agency Agric. Food & Markets: Vt Dairy,  https://vermontdairy.com/vt-dairy-today/ (last visited Feb. 5, 2020) (describing the State’s current dairy economy in light of falling milk prices); see also Vermont’s Dairy Economy, Vt Agency Agric. Food & Markets: Vt Dairy, https://vermontdairy.com/economic-impact/vermonts-dairy-economy/ (last visited Apr. 24, 2020) (highlighting the economic importance of dairy operations in Vermont).